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Miano v. Battery Place Green LLC

Supreme Court, New York County

April 3, 2013

Michael Miano, Plaintiff,
v.
Battery Place Green LLC, Albanese Organization, Inc., and Turner Construction Co., Defendants. Battery Place Green LLC, Albanese Organization, Inc., and Turner Construction Co., Third-Party-Plaintiffs,
v.
Five Star Electric Corp., Third-Party-Defendant Index Number: 102712/10

Unpublished Opinion

DECISION AND ORDER

KENNEY, JOAN M., J.

Recitation, as required by CPLR 2219(a); of the paper considered in review of this motion to dismiss.

Papers Numbered
Notice of Motion, Affirmation, Exhibits, and Memo of Law 1-9
Opposition Affirmation 10
Notice of Cross-Motion, Affirmation, and Exhibits 11-16
Reply Affirmation 17

In this personal injury action, third-party defendant, Five Star Electric Corp. (Five Star), moves for an Order, pursuant to CPLR 3212, dismissing the third-party complaint. Plaintiff cross-moves for an Order, pursuant to CPLR 5015, restoring the case to the trial calendar.

Factual Background

On November 1, 2007, plaintiff Michael Miano tripped and fell down a stairwell (the accident) located in a building undergoing construction which was owned and managed by Battery Place Green LLC (Battery), and Albanese Organization, Inc. (Albanese). Turner Construction Company (Turner) was the general contractor.

Turner hired Five Star as a subcontractor to provide power and light for the construction project. While Turner was responsible for cleaning and keeping the floors clear of debris, Five Star was responsible for the lighting of the stairwells; including the stairwell where the accident took place. The contract between Turner and Five Star, dated October 12, 2006, contains an indemnification clause which states, in pertinent part:

"The Subcontractor [Five Star] hereby assumes entire responsibility and liability for any and all damage or injury of any kind or nature whatever...to all person...resulting from, arising out of or occurring in connection with the execution of the Work, or in preparation for the Work [done by Five Star]...except to the extent...expressly prohibited by statute."

At his examination before trial (EBT), plaintiff stated that the accident occurred after he tripped and fell on debris located on the stairs. (Plaintiffs EBT pgs. 19-20). The last time plaintiff was in this stairwell was a few days prior to the accident, and there had not been any issues with lighting. (Plaintiff s EBT pg. 17). However, plaintiff testified that as he was descending the staircase, on the date of the accident the lighting was very low, and that it was getting darker as he proceeded down. (Plaintiffs EBT pg. 18). He stated that it was dark because a lightbulb was out on the date of the accident, but it was not out when he was at this same location a couple of days prior to the accident. ...


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